[Posted February 15, 2011] Today brings four new published opinions from the Court of Appeals. We see a rare administrative-law decision, and yet another en banc opinion in a criminal appeal.

Administrative law

Of the four types of cases over which the Court of Appeals has jurisdiction, admin-law appeals occupy the smallest percentage of the court’s docket, typically between one and two percent of the court’s caseload. Published opinions in these cases are correspondingly rare, but we get one today; National College of Business & Technology v. Davenport involves a finding by the Commissioner of Labor and Industry that a business school violated “asbestos-related safety standards” on campus. An inspector found exposed asbestos in a basement area where a heat-valve switch was located, and where several boxes of records were stored.

The school defended on the grounds that no proof existed that anyone ever went into the space, so no one cold be said to have been exposed to the carcinogen. That defense got the college nowhere in the trial court, and today a panel of the CAV affirms. It isn’t actual exposure that constitutes a violation; it’s potential exposure. As long as employees have access to the area where the danger exists, it’s a violation of occupational safety and health standards.

The college also contended that no evidence existed that the potential exposure occurred within six months, a prerequisite for a violation. The CAV puts this argument away by noting that the report of the violation was issued in February, and it only makes sense that someone would have been in there to switch the valve from “cool” to “heat” within that six-month period.

All is not lost for the school; it wins a partial reversal on the degree f the penalty, because the record contains insufficient evidence of the level of danger from the asbestos. No, the CAV hasn’t suddenly decided that asbestos isn’t carcinogenic; but the record doesn’t show the level of the exposure, and whether that level was sufficient to create a danger of serious injury or death. The Commissioner is thus charged on remand to recalculate the penalty, presumably to a lesser fine.

Unemployment compensation

I suspect that the decision in VEC v. Community Alternatives, Inc. was a close one, at least in one regard. Not on the outcome; the panel unanimously affirms the circuit court. I suspect that the question of whether this would be a published opinion or not was a near-run thing. In this appeal, an employer fired an employee for failing a random drug test, after she acknowledged the firm’s zero-tolerance policy. The issue is whether that employer has established a termination for cause if it did not adduce evidence of the chain of custody of the blood sample.

Normally, an objection to the chain of custody of any sample would be a legitimate gripe. But the employee never raised such a claim; the first time that issue popped up was when the VEC’s special claims examiner pulled it out of thin air (so today’s published opinion implies) to rule that the employer hadn’t proved a termination for cause. The trial court reversed that ruling, and today the CAV affirms. The court notes that the existence of such a chain of custody isn’t part of the employer’s prima facie case showing employee misconduct. The court today defers to the VEC’s long-standing interpretation that it isn’t, so the decision in favor of the employer is affirmed.

Criminal law

You see it all the time in federal court: A defendant enters into a plea agreement that, among other things, waives his right to appeal. He gets hit with a sentence that’s tougher than the one he expected, so he appeals anyway. Drives the prosecutors crazy . . .

How about in state court? Is a written waiver of the right to appeal enforceable against a defendant? We find out today in Congdon v. Commonwealth. Congdon pleaded guilty to vandalism in JDR court. The agreement allowed him to complete a drug-treatment program; if he did that, the charge would be dismissed. The JDR judge accepted that and signed off on it. Alas; Congdon proved to be no match for the rigors of the program. He flunked out a bit over a year later, and was found to be delinquent. He appealed, but the circuit court dismissed the proceeding, because of the explicit appeal-waiver provision in his plea agreement.

The ultimate question here is whether a statutory right to appeal can be validly waived. The CAV notes that all sorts of constitutional rights can be waived, including the right to have an attorney and to remain silent until he gets there. The right to appeal (believe it or not) isn’t even constitutional; its entirely a creature of statute.

Today’s analysis contains one observation that portends clearly the affirmance that’s coming here: The right to appeal can be waived, even inadvertently, by the defendant’s failure to file a notice of appeal in time. The question then becomes whether a curious anomaly exists in the law, such that a right can be waived accidentally but not deliberately and intentionally.

My long-time readers know that a setup like that will never stand up to appellate analysis; the CAV panel today affirms the trial court’s finding that the waiver was binding and enforceable against Congdon.

But before we leave this case, let’s take a moment to review one of Congdon’s arguments. After all, he got a writ, so there had to be at least the glimmer of an appellate issue here. He tantalizingly points out that the effect of an appeal is to void the appealed order. If the JDR order is void, Congdon plausibly contended, then the waiver contained in it has to be void, too. Nice try; but the plea agreement, not the order, is what contained the waiver. That agreement is perfectly valid. In addition, the notice of appeal isn’t what voids an appealed order; the beginning of the trial de novo in the circuit court is what voids it.

I’ve saved the best for last: We get our fifth en banc opinion of the past 15 days today, in the form of Holloway v. Commonwealth. This is noteworthy because, as I wrote last week, the court issued only three en banc rulings in all of 2010. Like the previous four, this one is divided.

When confronted on his porch by police officers, Holloway decided that the simplest way to secure his acquittal of drug-possession charges was to toss away the three baggies he had in his hand. For all the world, the stuff inside looked to be about $60 worth of crack cocaine ($20 worth in each bag). But these officers were shrewd enough to go and retrieve the contraband, which they had watched him ditch when they were presumably just a few steps away. It turned out that the contents weren’t crack cocaine at all; just an imitation substance.

Virginia really does have a law that bans possession of an imitation controlled substance. Holloway was prosecuted for possessing that with intent to distribute, primarily because of the testimony of an expert witness who opined that the amount he had was inconsistent with personal use. The expert also noted the absence of a crack pipe on Holloway’s person; he said that crack users usually carry one of those. The only remaining conclusion was that Holloway was a dealer.

Did that sound a bit thin to you? It didn’t to the trial court, which convicted Holloway. A panel of the Court of Appeals reversed, but the court granted en banc review, and today the judges vote 9-2 to affirm. Judge Frank, writing for the majority, defers to the trial court’s factual finding of intent (which almost always has to proved by circumstantial evidence), based principally upon the expert’s testimony. The dissent (Judge Alston, joined by Judge Elder) argues forcefully that what the expert was doing was contradicting Virginia caselaw on what constitutes sufficient evidence on intent to distribute. The dissent notes that many of the usual indicia of such intent are missing here: There were no scales, no wads of money, and no guns.

I foresee additional appellate scrutiny here; I think it’s quite likely that a panel of the Supreme Court will heed the dissent’s complaint that judges, not experts, should decide whether a given indicium of intent rises to a level sufficient to convict.